Lawyers discuss the experience of being in the jury box

(This article originally ran in the Lawyers Weekly, Boston, Ma, another Dolan Media publication).

Jury duty: for a lot of Americans these are two pretty scary words.

But for an increasing number of lawyers called to jury duty - and actually selected for service - the experience was a helpful lesson in civic duty that also provided them with some valuable trial tips.

I very much enjoyed the process and had even more confidence in the jury system than when I had reported for jury duty, said Boston lawyer Michelle R. Peirce.

Being a juror was one of the most valuable experiences I've ever had, added Stephen R. Glassroth, a criminal defense attorney in Montgomery, Ala.

Any attorney trying a case should sit on a jury, said Ryan S. Shaughnessy, a solo in St. Louis, Mo. You really get a better idea of how to present your case, how to follow your theory of a case, and how to move it along so there aren't gaps in people's attention.

In addition to the insight into the inner workings of the jury, Christopher Mark Neilson, a Hollywood, Fla., general practitioner, found some new clients.

As an interesting side note, I was later contacted by three of the people I met while on jury duty concerning legal representation, he said.

Lawyers are relatively new to the jury box.

Many states have included attorneys in the category of automatic occupational exemptions for jury duty, explained Anne Skove at the Center for Jury Studies of the National Center for State Courts in Williamsburg, Va.

But states are trying to get away from that as much as possible, in the effort to make juries more diverse and flexible, she said.

The most recent national study, conducted by the U.S. Department of Justice's Bureau of Justice Statistics in 1998, listed 10 states that automatically excluded attorneys - Hawaii, Maine, Missouri, Nevada, New Hampshire, Oklahoma, Rhode Island, South Dakota, Tennessee, and Virginia.

In addition, South Carolina automatically exempts any person employed within the walls of any courthouse.

Two states, Nevada and Missouri, have since made lawyers eligible for jury service.

Skove said there is still concern about the potential for lawyers to take over a jury or for other jurors to defer to a lawyer. When lawyers are eligible, they face the additional hurdle of being accepted by the lawyers trying the case, she noted.

Lawyers who do make the cut typically find themselves in the spotlight. Glassroth and Neilson were both named foreperson of their juries.

I tried to talk them out of it and said I was just a juror and you don't have to be a lawyer to be the foreperson, Glassroth said.

Although he finally accepted the nod, he made an effort never to play lawyer in the jury room.

Ronald G. Stephenson, a partner at Bullivant Houser Bailey in Portland, Ore., was foreperson - and ringleader - of his jury. In addition to having his firm provide breakfast to the jury during the weeklong trial, Stephenson helped his fellow jurors file a formal request to look at evidence, ask questions of the witnesses and get a written copy of the jury instructions.

I was an enabler, he laughed.

'We The Jury, Being Duly Impaneled...'

Stephenson's jury experience was unusual, to say the least.

It began when the jury, hearing a criminal child abuse case in the summer of 1998, retired for a break. After chatting with some of the other jurors about pictures that had just been introduced into evidence, Stephenson asked the bailiff if the jury could review them.

The bailiff refused.

So Stephenson did what any self-respecting lawyer/juror would do: he drafted a formal request to the judge, asking for each exhibit to be made available to the jurors once it had been received into evidence.

The request, beginning with We the jury, being duly impaneled and sworn in, was signed by 10 of the other jurors - the one remaining juror thought it was too aggressive, Stephenson said.

Submitting the request was eminently logical, he explained. The photographs were in evidence, so we were going to see them eventually, and we needed them to begin to evaluate and absorb what was in the pictures while other witnesses were testifying.

Stephenson, a trial attorney with almost 37 years of experience, learned a valuable lesson about juror awareness. During another break, he and his fellow jurors discussed questions they had for a witness.

So they passed their request onto the judge, who asked the lawyers how they felt about the jurors submitting their questions.

The prosecutor jumped up and said, 'Sure, your honor,' but the defense attorney sat there as if he was thinking it through, Stephenson said. Finally, he got up and said the defense was willing if the prosecution was.

Too little, too late - his protracted decision-making in front of the jury left them cold.

Stephenson said that while the other jurors clearly knew he was a lawyer, they didn't defer to his opinions.

We had a great jury, went through all of the evidence and everyone had a chance to talk, he said. Everyone wanted to do their job.

He also made a point to keep some things to himself.

From some of the comments made at trial, Stephenson realized the defense attorney was a public defender, and the defendant was incarcerated.

I don't think the other jurors realized that, and I didn't want to influence them, he said.

Despite his success as a self-described rogue juror, the judge didn't acquiesce to all of Stephenson's requests.

Facing a stifling hot jury room without air conditioning, Stephenson offered to move deliberations to a conference room at the firm just two blocks away.

But the judge wasn't sure about that one, he laughed, and the jury stayed put.

Luckily, the weather cooled.

'Lawyer Time'

Glassroth spent nine days in October 2003 on a civil case in which a mother sued a public housing authority after her child suffered brain injury from eating lead-based paint chips.

Since he knew the judge, the attorneys for both sides and even some of the court staff, Glassroth was amazed to be picked.

I never figured either side would pick me, he said. Actually seeing the case from the perspective of watching the lawyers was fascinating.

The observations of the jurors surprised him - jurors critique the lawyers, are conscious of what people are wearing, and wonder about all of the people in the gallery, he said.

Jurors miss nothing. Individuals may not see everything, but collectively everything is caught, he explained.

I am much more aware of always being 'on,' he said. Whenever jurors are around, I always assume they are watching, and I counsel my clients accordingly.

Glassroth also learned the difference between real time and lawyer time.

Every time we would take a 10-minute break, it would morph into an hour, he said. As a juror, you're just sitting there languishing, and nobody tells you anything.

In his own trials, Glassroth said he has become much more conscious of being succinct in all his presentations. The value of time was reinforced during the trial when one of the attorneys attempted to make a PowerPoint presentation.

He kept screwing up, and making jokes about it, but the jurors didn't like that, Glassroth said. If you're going to use technology as part of your case presentation, make sure you know how to use it.

He also learned to be careful about case theory and presenting an argument without being condescending. Part of the plaintiff's claim was that the lead-based paint resulted in her child's learning disability - and the defense theory that the apple didn't fall far from the tree didn't resonate with the jury.

They brought in the mother's school history of bad grades and failure, and basically said that she was a bad student, so her child was, too, he explained.

During his testimony, the defense expert really talked down to the jury, and during deliberations Glassroth said it was clear his fellow jurors were offended.

The CSI Effect

As a solo, all the sitting around and waiting was frustrating to Shaughnessy, who was very aware that he was losing time and money.

After being passed over by the first panel, he was selected for a criminal drug possession case. He was one of the first lawyers to make a jury after Missouri struck down its automatic exemption for attorneys in August 2004.

It's the little things while you're in the jury box that are just maddening, said Shaughnessy, who focuses on real estate work and municipal law in his own practice.

For example, during voir dire, the prosecutor would address one section of the panel, then pause, and turn to another section of the panel and ask the same question.

A more experienced attorney would ask everybody the same question at once for background information, Shaughnessy noted. Or pick out one person and question them in depth to make a point.

Instead, the process dragged out, and for a group of people already sitting for hours, the waiting was painful, he said.

Shaughnessy's jury, deadlocked from the beginning of their deliberations, also suffered from a heightened CSI-type standard of reviewing evidence, he noted.

I asked one juror what it would take to convict, and he started listing off fingerprints and eyewitnesses and a lot of unrealistic things, Shaughnessy said. I tried to explain that just doesn't happen and there aren't teams of eight technicians for every drug case in the city.

One thing the jurors did agree on was having Shaughnessy as foreperson.

In part they assumed that I would want to and that I had some superior knowledge about how the jury is supposed to conduct its business, he said.

But Shaughnessy declined the honor.

I didn't want the fact that I was a lawyer to make a difference, he explained.

He did provide some legal insight when the jury would veer off- track, however.

There was an issue about whether or not the police officer's search of the car was valid, and some of the jurors placed real significance on that, he said. I explained that there was no issue about the legality of the search - if it had been deemed illegal, we wouldn't have heard about it.

Reinforcement and Repetition

Unlike the other attorneys, Peirce's fellow jurors didn't know she was a lawyer.

I told one or two people whom I chatted with, but I went out of my way not to share [that I was an attorney], she said. I didn't want people to defer to me.

Peirce (who did disclose her occupation on her questionnaire) was chosen for an assault and battery with a deadly weapon trial in Boston in 2001. The victim was blinded in one eye after the defendant hit him with a rock.

Peirce, who practices primarily civil litigation and white- collar defense work at Donoghue Barrett & Singal, picked up several trial tips as a juror. The case required multiple witnesses to draw diagrams of their location vis-a-vis the rock-thrower, she explained.

One attorney did a decent job of using a blow-up diagram and a laser point, but the other spent long stretches one-on-one with the witnesses asking them to draw initials and marks that only the lawyer and the witness could see, she said.

As a result, there was confusion during deliberations about where the witnesses were positioned during the attack, she said.

In addition, Peirce said she learned that reinforcement of important information is essential, especially at the beginning of trial.

There was a learning curve as we learned the names of the witnesses, heard the facts for the first time and tried to figure out the issues, she said. Lawyers need to keep this in mind and repeat things to the jury that they want them to retain for deliberations, she added.

If you have a key point that the jurors have to get, you need to repeat it numerous times and make it one of the last things they hear in closing, she said.

Peirce also had a similar experience to Shaughnessy regarding the jurors' expectations. Her fellow jurors seemed to expect lawyers to live up to the standards of TV lawyers and she was surprised by the jurors' critical reactions.

One juror went so far as to call the attorneys the worst and awful, and other jurors agreed.

I'm convinced that their high expectations come from the fact that their main exposure to jury trials is by way of TV, Peirce said.

But despite their sometimes unrealistic expectations, Peirce praised her fellow jurors for their hard work and dedication.

This jury took its responsibility very seriously and tried its best to reach the right decisions, she said, noting they deliberated for days before reaching a guilty verdict.

Note: Ronald G. Stephenson is the author's father.

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